Thurler et al v. Popejoy

Filing
11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TARA THURLER, as Special Administrator
for the Estate of Kristen J. Shockley, deceased,
and MEL GREGORY, as Guardian Ad Litem
for A.T., a minor, and JENNIFER STULTZ,
as Guardian Ad Litem for A.H., a minor,
Plaintiffs,
vs.
WILLIAM POPEJOY,
Defendant.
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Case No. 13-01073-JAR-JPO
MEMORANDUM AND ORDER
Before the Court is Defendant’s Motion to Consolidate (Doc. 7) for all purposes the
above-captioned case (“Thurler”) with Michael Haakenson, Guardian Ad Litem to A.H., minor
and heir-at-law of Kristen J. Shockley, and Lisa M. Shultz, Guardian Ad Litem to A.T., minor
and heir-at-law of Kristen J. Shockley (“Haakenson”), Case No. 12-2651-EFM-DJW. The
motion is unopposed, and the Court is prepared to rule. As explained below, the Court grants
Defendant’s motion.
Federal Rule of Civil Procedure 42(a) allows a court to consolidate “any or all the matters
in issue in the actions” if the actions involve a “common question of law or fact.” The decision
to consolidate such actions is left to the district court’s discretion.1 “In exercising its discretion,
the court should take into consideration whether judicial efficiency is best served by
1
C.T. v. Liberal Sch. Dist., 562 F. Supp. 2d 1324, 1345-46 (D. Kan. 2008) (citing Shump v. Balka, 574 F.2d 1341,
1344 (10th Cir. 1978)).
consolidation. The court generally weighs the saving of time and effort that consolidation would
produce against any inconvenience, delay, or expense that consolidation would cause.”2
The Court finds that both cases involve common questions of fact and law. First, both
actions arise from the death of Kristen J. Shockley on April 2, 2012. Mr. Shockley died as a
result of physical injuries sustained in a motor vehicle collision in Kansas City, Kansas. Second,
both actions involve the same parties, Mr. Shockley’s minor children, who are his heirs and the
real parties in interest regardless of who is named as guardian ad litem for the children or the
administrator for the estate of Mr. Shockley,3 and defendant. Third, both actions allege claims
for wrongful death, and both actions will involve similar discovery and witnesses. The fact that
the Thurler Petition alleges a survival claim and the Haakenson First Amended Complaint
alleges there is “no evidence of conscious pain and suffering to support a survival claim” is not
sufficient reason to deny consolidation (No. 12-02651, Doc. 4, ¶ 14). If, as here, “two cases arise
from the same operative facts and substantially the same witnesses will testify in both cases,
consolidation is particularly appropriate. The fact that one suit involves a claim for damages not
involved in the other suit does not preclude consolidation.”4 Fourth, defendant argues that if the
two cases are not consolidated, he is in the prejudicial position of being at risk for inconsistent
and duplicate adjudications arising from the same operative facts.5 The Court is persuaded that
2
Id. (internal citations omitted).
See Lane v. United States, No. 90-4228-S, 90-4229-S, 1991 WL 105204, at *1 (D. Kan. May 28, 1991) (Even if
the parties differed, “actions by different parties arising out of the same tort, particularly in cases of automobile
accidents, are frequently ordered consolidated.”).
4
Fields v. Atchison, Topeka and Santa Fe Ry., No. 95-4026-DES, 95-4027-DES, at *2 (D. Kan. Feb. 7, 1996)
(internal citations omitted).
5
See Munjak v. Signator Investors Inc., No. 02-2108-CM, 03-2081-CM, 03-2099-CM, 03-2175-CM, 03-2176-CM,
03-2211-CM, 03-2295-CM, 2003 WL 23506989, at *1 (D. Kan. Dec. 10, 2003) (quoting Arnold v. E. Air Lines,
Inc., 681 F.2d 186, 193 (4th Cir.) (“The critical question for the district court in the final analysis was whether the
specific risks of prejudice and possible confusion were overborne by the risk of inconsistent adjudications of
common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple
lawsuits, the length of time require to conclude multiple suits as against a single one, and the relative expense to all
concerned of the single-trial, multiple-trial alternatives.”)).
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consolidation of the two actions will serve the policy of judicial efficiency and eliminate
unnecessary duplication of time, resources, and efforts by the Court, the parties, and counsel.
The Haakenson case was filed on October 5, 2012 at Kansas City, Kansas, and Defendant
was served on December 11, 2012. The Thurler case was filed on December 20, 2012 in
Sedgwick County, Kansas District Court; Defendant was served on January 27, 2013; and the
Thurler case was timely removed to federal court on February 13, 2013. Plaintiffs in Haakenson
also have filed a Motion for Consolidation (No. 12-02651, Doc. 13). Because the Haakenson
action was commenced first and the motor vehicle accident occurred in Kansas City, the
Haakenson plaintiffs request that the instant case, the Thurler case, be consolidated with the
Haakenson case and all further proceedings conducted in Kansas City, Kansas. Defendant has
no objection. The Thurler plaintiffs have filed no objection.
IT IS THEREFORE ORDERED that Defendant’s Motion to Consolidate (Doc. 7) is
granted.
IT IS SO ORDERED.
Dated: March 12, 2013
s/ Juile A. Robinson
United States District Judge
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